1. This is a revision application directed against an order of the City Judge, Srinagar, holding that the suit for declaration brought by the plaintiffs in respect of their alleged share in the compensation awarded to the defendant, was maintainable. The petitioner has been in occupation of a house situate in Mohalla Said Sahib, Srinagar. This house belongs to one Hasan Shah who for the last several years has been residing in Pakistan. The Asstt. Custodian of the Evacuees'. Property declared this house, at the instance of the third respondent, to be evacuee property and called upon the petitioner to vacate it. The petitioner appealed to the Custodian who affirmed the order of the Asstt. Custodian that the house was evacuee property, but permitted the petitioner to remain in possession on his executing a lease deed to the Custodian and paying rent to him. Not satisfied with this order, the petitioner moved the Custodian General who came to the conclusion that the house was not evacuee property. The third respondent thereupon preferred an application to the Custodian General for review of his order; the Custodian General allowed the application and held the house to be evacuee property. The petitioner now seeks to get the order passed in review quashed on certiorari.
2. The first ground urged by the learned counsel for the petitioner is that the third respondent had no locus standi to move the Custodian General to review his order. It is admitted that the third respondent is not the owner of the house in question but he is a relative of Hasan Shah who is admittedly the owner of the house. It is urged that the mere circumstance of his being a relative of the owner of the house is insufficient to clothe the third respondent with competence to initiate review proceedings before the Custodian General. The argument is that the third respondent is in truth and effect only a stranger and not an aggrieved person and, therefore, the Custodian General had no jurisdiction to entertain, his application.
3. I am not satisfied that this contention ought to prevail. It was at the instance of the third respondent that the Assistant Custodian, as early as 1954, took proceedings to declare the house evacuee property. The petitioner had impleaded the third respondent as a party in his appeal to the Custodian. The petitioner also impleaded the third respondent as a party before the Custodian General who passed the original order. All along the third respondent had contended that the house in question was evacuee property. For the first time this contention of his was negatived by the Custodian General who held that the house was not evacuee property. The third respondent was, therefore, legitimately aggrieved by this order. He was, therefore, entitled to seek to get the order reviewed.
4. When a person is allowed to raise a contest in a certain matter and his contention is negatived, he is certainly a person aggrieved by the order disallowing his contention: much more so in a case where he is deliberately impleaded as a party to the proceedings and an order is sought against his contention in those proceedings. The petitioner himself regarded the third respondent as the main contestant and impleaded him in the appeal before the Custodian and in the revision before the Custodian General and the third respondent put forward his case against the petitioner before both those tribunals. It is, therefore, difficult to appreciate the present stand of the petitioner that the third respondent was not entitled to move the Custodian General in review.
5. The test to determine who is an aggrieved person in a case more or less similar to the present was pointed out by the Supreme Court in Ebrahim Aboo Baker v. Custodian General of Evacuee Property, New Delhi, AIR 1952 SC 319 at p. 322. On principle as well as on authority I am satisfied that the third respondent was competent to move the Custodian General to review his order. Besides, the ground that the third respondent had no locus standi to apply for review was not taken by the present petitioner in the review proceedings. I do not think he can successfully urge at this stage that the tbird respondent was incompetent to apply to the Custodian General for review.
6. The second ground urged by the petitioner's learned counsel is that the Custodian General exceeded his powers in reviewing his previous order. I may mention here that the Custodian General who passed the original order had debited office after the review application was presented. His successor-in-office heard the review application on merits and passed the impugned order. This circumstance has no importance in deciding whether or not the order passed in review was in excess of the powers of the Custodian General. The power of review is conferred on the Custodian General by sub-section (5) of Section 30 of the Evacuees' Property Administration Act. It runs:
“The Custodian General, Custodian, Additional Custodian or Authorized Deputy Custodian, but not a Deputy or an Assistant Custodian, may, after giving notice to the parties concerned, review his own order.”
7. The wording of this provision does not restrict the power of review as the provisions of O. 47 R. 1 of the CPC do. It is therefore, argued by the learned Advocate General on behalf of the Custodian General (first respondent) that Sec. 30(5) confers unrestricted powers of review on the Custodian General and that he is not circumscribed by any of the limitations prescribed by O. 47 R. 1. On the other hand, the learned counsel for the petitioner has urged that the Custodian General in exercising his powers of review is as much controlled by the provisions of O. 47 R. 1 as any civil court. For this proposition he has relied on Bibi Nazma v. R.P Sinha, AIR 1954 Pat 43. The scope of the expression ‘review’ used in Section 26(2) of the Administration of Evacuee Property Act, 1950, fell to the construed in that case. The Division Bench stated at page 45:
“It is manifest, therefore, that the expression ‘review’ has a well known legal significance, and Section 26(2) of the Administration of Evacuee Property Act must be construed in the context and background of the Code of Civil Procedure where the same expression has been used. It is a familiar rule of construction that when the legislature has deliberately used a term which has a known legal significance in law, it must be taken that the legislature has attached to that term that known legal significance (see — L.P.E Pugh v. Ashutosh Sen, AIR 1929 P.C 69). In our opinion the expression “review” used in Section 26(2) of the Administration of Evacuee Property Act, must be construed not in a grammatical sense but it must be construed to have the same legal meaning as in O. 47 R. 1, Civil. P.C”
8. In AIR 1929 P.C 69, Lord Warrington of Clyffe accepted the view which Das, J. had expressed in the following words in Lodna Colliery Co. Ltd. v. Bepin Behari Bose, 55 Ind Cas 113 : (AIR 1920 Pat 383 (2)):
“It must be presumed that when the legislature has deliberately used a term which has a known legal significance in law it has attached to that term that known legal significance.”
9. No doubt, the Privy Council in AIR 1929 P.C 69 was dealing with Article 48 of the Limitation Act and the scope of the expression, “conversion” occurring in that Article; but the principle of construction which was accepted and adopted by their Lordships of the Judicial Committee is of general application and can well be extended to the instant case. I am therefore, inclined to accept the contention of the petitioner's learned counsel that the Custodian General can review his own order only on one of the grounds mentioned in O. 47 R. 1.
10. The question then is whether the Custodian General has, in the present case, travelled beyond the limits permitted to him by O. 47 R. 1 of the CPC. This takes us to an examination of the grounds on which the Custodian General reviewed his previous order. This ground is stated by the Custodian General himself in the impugned order as follows:
“The order passed by my learned predecessor in office is based on the assumption that the property is not an evacuee property which according to the facts admitted by the parties is not correct. There is an error in the judgment of my predecessor in office apparent on the face of the record. The result is that I accept the review petition……”
11. This makes it clear that the Custodian General purported to coniine himself to the limits prescribed by O. 47 R. 1 which authorizes a review of judgment, if there is some mistake or error apparent on the face of the record. But it is strenuously contended for the petitioner that, as a matter of fact, the order passed in review was erroneous. The main question that fell for determination was whether the house in question is evacuee property which is defined as a “property in which an evacuee has any right or interest.” The Custodian General had, therefore, to ascertain whether Hasan Shah who is tile owner of the house is an evacuee. The definition of an evacuee for the present purpose is as follows:
“‘Evacuee’ means any person who is resident in any place now forming part of Pakistan or in any such part of the territory of Jammu and Kashmir State as is under the operational control of the Pakistan armed forces, and who for that reason is unable to occupy, supervise or manage in person his property in the State.”
12. It is common ground that Hasan Shah has been permanently residing in Pakistan for a number of years now. If by reason of his being in Pakistan he has been unable to occupy, supervise or manage in person his property in this State, he will squarely fall within the definition of “evacuee” and his property will consequently be “evacuee property.” It was not the case of the petitioner at any time that something other than his being in Pakistan prevented Hasan Shah from occupying, supervising or managing his property in the State. Nor did the petitioner at any stage of the protracted proceedings before the authorities constituted by the Evacuees' Property Administration Act contend that Hasan Shah, notwithstanding his residence in Pakistan, could occupy, supervise or manage in person his property in the State.
13. On the other hand, the admitted residence of Hasan Shah in Pakistan could legitimately have raised the inference that because of such residence, he is unable to occupy, supervise or manage in person his property in the State. Indeed, the counsel for the petitioner who appeared before the Custodian General in the review proceedings appears to have conceded that Hasan Shah is an, evacuee by virtue of the definition already adverted to. In his first order, the Custodian General, however, does not appear to have devoted sufficient attention to the implications of Hasan Shah being, resident in Pakistan. This was perhaps the most important aspect of the matter and should have been dealt with by the Custodian General at much, greater length. Instead, he disposed of it as follows:
“Assuming that he (Hasan Shah) is in Pakistan, as Custodian states in his order under appeal, there is no reliable evidence to show that he is for that reason unable to occupy, supervise or manage the house in question in the State in person.”
14. As I already stated, it was nobody's case that Hasan Shah was not in Pakistan. The only question was whether, in spite of his being resident in Pakistan, he could occupy, supervise or manage in person his house in Srinagar. As a matter of fact the answer could only have been in the negative. As such, an obvious finding on practically admitted facts was not recorded by the Custodian General in the first instance and as this important aspect of the matter was almost ignored by him, an application for review came to be preferred. In the circumstances, the statement in the review order that there is an error apparent on the face of the record appears to me to be justified.
15. It is next argued for the petitioner that a review on the ground of an error of fact, however apparent it be on the face of the record, cannot be supported under O. 47 R. 1 of the CPC. I think this proposition is wholly incorrect. There is nothing in O. 47 R. 1 to confine its application to apparent errors of law and not of fact. In North West Frontier Province v. Surajnarain Anand, AIR 1949 PC 112, a judgment of the Judicial Committee was reviewed by it because it proceeded on, an erroneous assumption that certain Police Rules were operative on a specified date when, as a matter of fact, it did not come into operation on that day. In Jamna Kuer v. Lal Bahadur, AIR 1950 F.C 131, a mistake of fact was made in the judgment with regard to the nature of certain immoveable properties and the Federal Court forcefully pointed out that it was a dear case for review of judgment.
16. It is unnecessary to multiply authorities on this point. If an obvious error of material fact appears on the face of the record, it can be a valid ground for review. So also if a judgment or order did not effectively deal with and determine; an important point on which the decision in the case was to depend and the omission appeared on the face of the judgment or order, the judgment or order could well be reviewed. (Please see: M.M.B Catholicos v. M.P Athanasius, AIR 1954 SC 526 at p. 540).
17. It appears on the face of the first order of the Custodian General that proper account was not taken of the fact that Hasan Shah has been a resident of Pakistan; an inference which almost automatically flowed from this fact was also ignored in the first order. These errors were not only material but also self-evident.
18. Considering all the aspects of the case, I am of the view that the Custodian General was justified in reviewing his previous order, in the present case. He did not act without jurisdiction in exercising his powers of review; nor did he act in excess of jurisdiction. There is no question in this case of any illegality in the exercise of jurisdiction. No principle of natural justice has been violated.
19. The last ground however on which the learned counsel for the petitioner asks me to quash the impugned order is that there is an error of law apparent on the face of the order. I am wholly unable to see any error of law apparent on the face of the impugned order. Errors of the kind which might be corrected by a court of appeal are not errors which would be amenable to correction by a writ of certiorari. In Hari Vishnu v. Ahmad Ishaque, (S) AIR 1955 SC 233, it is pointed out:
“It must therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record.”
20. It is also well settled that a certiorari will not issue as “the cloak of an appeal in disguise”; it cannot be used in order to bring an order or decision for re-hearing of an issue raised in the proceedings. Writ jurisdiction is essentially of a supervisory character and writ proceedings cannot partake of the nature, and character of an appeal. Nor can the court sitting in writ seek to substitute its own decision or discretion for that of the inferior tribunal whose order is brought up before it.
21. If these principles are adhered to in the present case, I should feel constrained to disallow the writ asked for. The petitioner's learned counsel has advanced elaborate arguments going into meticulous details in a effort to show that on merits the Custodian General ought not to have reviewed his previous order. But this effort is appropriate only to an appeal and not to writ proceedings. In an attempt to show that the impugned order is erroneous on the face of it, the learned counsel sought to urge doubtful points of law and fact and sought to employ a long drawn process of rather farfetched reasoning and roundabout inferences. If all this effort is required to bring to light what he himself would call an error of law apparent on the face of the record, one should say that there is really no such error. In this context it is well to refer to the observations of the Supreme Court in a recent decision in Satyanarayan v. Mallikarjun, AIR 1960 SC 137, at pp. 141 and 142:
“An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self-evident and if it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.”
22. It follows from the foregoing that the petitioner is not entitled to a writ of certiorari. As the other reliefs claimed in the petition are of an ancillary nature and cannot conceivably be granted if the main relief of a writ of certiorari is refused, it is unnecessary to consider them. The petition accordingly fails and is dismissed. The petitioner will pay a sum of Rs. 50/- as costs to the respondents.
FD/D.H.Z
23. Petition dismissed.